Shri Sampat Dattu Bhosale vs Sou Archana Chandrakant Shinde on 5 September, 2008

[Cites 4, Cited by 1]

Bombay High Court

Shri Sampat Dattu Bhosale vs Sou Archana Chandrakant Shinde on 5 September, 2008

1. The petition is challenging the order of the School Tribunal passed in Appeal No.53 of 1995. The petition has been filed by an employee who is directly recruited as Head Master pursuant to an advertisement issued by the institution. Writ Petition No.2142 of 1998 has been filed by the institution contending that the appellant ::: Downloaded on - 09/06/2013 13:49:26 ::: 2 before the School Tribunal did not deserve any relief from the Tribunal.

2. The petitioner worked as an Assistant Teacher from 1.9.1977 to 31.5.1990 in a school run by the Khanapur Shikshan Prasarak Mandal. An advertisement was issued on 16.5.1990 in a local newspaper for filling the post of Head Master in the school run by respondent No.3 institution. Interviews were held and although respondent No.1 applied for the post pursuant to the advertisement, she did not appear for the interview.

The petitioner was selected and appointed as Head Master from 1.6.1990 on probation for two years. The Education Officer approved this appointment by an order dated 21.2.1995, retrospectively from 1.6.1990. The institution had appointed respondent No.1 as an Assistant Teacher on probation for two years w.e.f.

11.6.1990. Prior to that, she was appointed as Assistant Teacher in each year from 1985 to 1989-1990.

Thus, the respondent No.1 has worked as an Assistant Teacher for 5 years prior to 1990. However, the appointment was for a limited period of one year on each occasion and the appointment was on a temporary basis.

Undisputedly, she was not appointed as a permanent teacher. By an order dated 7.6.1990, she was appointed as an Assistant Teacher on probation w.e.f. 11.6.1990.

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3. The petitioner after being selected, assumed office on 20.5.1990. Undisputedly, the respondent No.1 completed five years of service, assuming they are to be treated as continuous, only on 12.6.1990.

4. The petitioner continued to work in the school after his appointment in 1990. Respondent No.1 filed an appeal before the School Tribunal on 24.4.1995 contending that, (i) her seniority was wrongly fixed and that she was in fact senior to another teacher who is respondent No.5 ig in the petition; (ii) that she was entitled to be appointed to the post of head of the school and that she had been superseded by the petitioner who was an outsider in the school. The appeal was heard and finally disposed of by an order dated 3.4.1998. The Tribunal has held that respondent No.1 was entitled to the post of Head Mistress of the school w.e.f. 24.4.1995 i.e. the date of filing of the appeal. The Tribunal set aside the order appointing the petitioner as Head Master. The Tribunal has also declared that the approval granted to the appointment of the petitioner as a Head Master was illegal, ineffective and void ab initio. Respondent No.2 i.e. the Education Officer was directed to take steps to recover the salary from respondent Nos.1 and 3 i.e. the petitioner and ::: Downloaded on - 09/06/2013 13:49:26 ::: 4 respondent No.3 herein. The institution was directed to pay respondent No.1 the salary in the cadre of Head Master from 24.4.1995.

5. Mr.Bandiwadekar for the petitioner submits that the appeal itself is not maintainable. He points out that what is contemplated under Section 9 sub-section (1)(b) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the M.E.P.S. Act), is supersession by the management while making an appointment to a post by promotion. He further submits that the present case is not one of supersession as there is no question of the management having appointed the petitioner by way of promotion, superseding the claim of the respondent No.1. The petitioner has been appointed directly and, therefore, the question of superseding the claim of the respondent No.1 does not arise. He then submits that the Tribunal has not taken into consideration the delay in filing the appeal. He concedes that an appeal to the Tribunal against an order of supersession need not be filed within the period of limitation mentioned in Section 9 sub-section (2).

However, he submits, it nevertheless must be filed within a reasonable time. He points out that the present appeal has been filed five years after the ::: Downloaded on - 09/06/2013 13:49:26 ::: 5 appointment of the petitioner and, therefore, that period cannot be considered to be a reasonable period.

The learned advocate then argued on merits that the respondent No.1 had not completed five years continuous service to be appointed as the head of the school. He draws my attention to Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the M.E.P.S. Rules), which provides the qualifications and appointment as the Head of the School. A person to be appointed as head of the school must have put in not less than five years service. He points out that this service must be continuous and on a permanent basis. He contends that the respondent No.1 in any event could not have been appointed to the post of Head of the School as she did not have the requisite qualifications.

6. Reliance is placed by the learned advocate on the judgment in the case of Secretary, Shri Jamnadas Adukia Charity Trust, Bombay & ors. v/s Chintamani Birjaprasad Dubey & ors., reported in 2000 II C.L.R. 142, where a learned Single Judge of this Court has held that there can be no supersession of a person in service in case a person is appointed as a direct recruit. He also draws my attention to the judgment of the Supreme Court in the case of Union Public Service Commission v/s Hiranyalal ::: Downloaded on - 09/06/2013 13:49:26 ::: 6 Dev & ors., reported in A.I.R. 1988 S.C. 1069, in support of his contention that supersession is possible only in case of promotion and not of selection. He submits that, if the appeal itself is not maintainable, then the question of granting any relief to the respondent No.1 does not arise.

7. Mr.Joshi, appearing for the institution i.e. respondent No.3 herein, supports the submission advanced by Mr.Bandiwadekar. He further contends that assuming the appointment of the petitioner is irregular inasmuch as no permission was obtained from the Education Officer prior to advertising the post of Head Master, the respondent No.1 would not automatically be entitled to the post of Head Mistress. He further contends that the petitioner has been in service with the school for 18 long years and this fact should be considered by this Court while passing the final order in the petition.

The learned advocate also submits that respondent No.1 ought to have challenged the issuance of the advertisement itself as the rights of respondent No.1 were crystlized when the advertisement was issued.

Therefore, he submits, the delay in filing the appeal would be a hurdle for the respondent No.1 to cross before any reliefs can be granted to her.

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8. Mr.Mankapure, the learned advocate for respondent No.1, submits that the appeal is maintainable as any order of supersession can be challenged in the School Tribunal. He submits that supersession means replacement, by relying on the dictionary meaning of "supersession" and, therefore, any order replacing the respondent No.1, who was acting as a Head Mistress, amounts to supersession. He places reliance on the judgment of a learned Single Judge of this Court in the case of Nagpur Shikshan Mandal & anr. v/s Haribhau Nathuji Mohod & ors., reported in 2008(3) All MR 171 another judgment ig between the same parties reported in 2007(2) Bom.C.R. 50. He submits that the petitioner was appointed pursuant to an advertisement issued by the institution although the latter was well aware of the fact that respondent No.1 had completed five years in service and, therefore, would be entitled to the post of Head of the School. He submits, therefore, that the appeal is maintainable as held by the School Tribunal.

As regards the question of limitation, the learned advocate submits that right from 1989, the respondent No.1 was corresponding with both, the school and the Education Department, contending that her seniority had been wrongly fixed. According to him, had the seniority of respondent No.1 been fixed correctly, she would have been shown senior to respondent No.1 and, would have ::: Downloaded on - 09/06/2013 13:49:26 ::: 8 automatically been eligible to be appointed as head of the School. The learned advocate then submits that in any event the appointment of the petitioner is illegal, because no permission was obtained from the Education Department prior to advertising the post of Head of the School. He submits, while placing reliance on the judgment of the Division Bench of this Court in the case of Tara Ramesh Tupkar v/s Pramod Shikshan Sanstha, reported in 1999 (Supp.) Bom.C.R. 119, in support of this contention, that the management of a school can advertise a post of head of the school only after obtaining permission from the Education Officer/Deputy Director. He urges that sub-rule 5(b) of Rule 3 has been breached by the institution, as admittedly, prior permission was not sought while advertising the post of Head of the School.

9. The first issue which will have to be decided is whether the appeal itself is maintainable. The meaning of the verb "supersede" in the Conscise Oxford Dictionary is - "(a) "adopt" or appoint another person or thing in place of. (b) set aside; cease to employ."

The meaning assigned to the word "supersede" in the Black's Law Dictionary (Eighth Edition) is - "1. To annul, make void, or repeal by taking the place of; 2.

To invoke or make applicable the right of supersedeas ::: Downloaded on - 09/06/2013 13:49:26 ::: 9 against." Therefore, the term "supersession" means replacing a person or thing.

10. In the case of Union Public Service Commission v/s Hiranyalal Dev & ors., reported in A.I.R. 1988 SC 1069, the Supreme Court has considered whether a direct recruit could supersede persons who were already in service. A Selection Committee had been appointed and the Committee selected a person in preference to another. The Supreme Court has observed that this could not amount to supersession of a junior by a senior. It also held that the concept of "supersession" is relevant in the context of promotion and not in the context of selection. Similarly, in the case of Secy. Shri Jamnadas Adukia Charity Trust v/s Chintamani Birjaprasad Dubey & ors., reported in 2000 II C.L.R. 142, a learned Single Judge of this Court has held that a direct appointee to a post could not supersede a person who was already in service. Supersession, it was observed, takes place only when a junior employee is promoted to a higher post, overriding the claim of a senior employee in his cadre.

11. I am in respectful agreement with the view taken by the learned Single Judge of this Court in Secy. Shri Jamnadas Adukia Charity Trust (supra). When there is a ::: Downloaded on - 09/06/2013 13:49:26 ::: 10 case of supersession it presupposes that a person who is junior in rank overrides the claim of a person who is senior to him and is appointed instead of his senior.

Section 9 of the M.E.P.S. an appeal by the post by promotion. be assigned to section. a direct recruit. any replacement whether or by overriding be challenged submission is not recruit and supersession in fact. submitting that person, the 9(1)(b) of the M.E.P.S. be given effect. by promotion Tribunal. was not competent to decide ::: Downloaded on - 09/06/2013 13:49:26 ::: id="span_22"> 11

12. Turning now to the issue of limitation, it is no doubt true that a supersession can be challenged under Section 9(1)(b) before the Tribunal at any time and there is no fixed period of limitation. However, it would not give a licence to a person to challenge the order passed in favour of another who she claims has superseded her after an inordinate delay. In the present case, respondent No.1 has contended that she was pursuing other remedies of corresponding with the authorities in order to redress her grievance.

Admittedly, the respondent No.1 has not filed any application for condoning the delay in filing her appeal. Instead, it was only after the management in its written statement contended that there was no application filed for condoning the delay and that therefore the appeal should be dismissed, that an application for condoning the delay was filed by the respondent No.1. That application was opposed by the petitioner by filing his reply. However, the Tribunal chose not to pass any order on that application and instead decided all issues together. The Tribunal was of the opinion that there was no delay on the part of the respondent No.1 in filing the appeal.

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13. It is now trite that merely engaging in correspondence for redressal of one's grievance over a long period of time is not sufficient to explain the delay in filing an appeal. In the present case, the respondent No.1 was aware that the advertisement was issued on 16.5.1990. She chose not to challenge the issuance of the advertisement and instead applied for the post of Head of the School. Thus, she was aware of the advertisement having been issued on 16.5.1990 itself. She was also aware that the petitioner was appointed on 28.5.1990 as she was working in the same school.

If the petitioner's contention that she was in continuous service is accepted, she completed five years on 12.6.1990. Therefore, according to her, she should have been appointed on that date as Head of the School.

However, she chose to remain silent even on completion of five years. She continued her correspondence and claims that the Education Officer had assured her that approval could not be granted to the appointment of the petitioner to the post of Head Master and, therefore, she did not challenge his appointment. It was only after the approval was accorded that she decided to challenge the appointment of the petitioner. This submission again cannot be accepted. The requirement of approval of the appointment of a person to a particular post, if not met, does not necessarily lead to the ::: Downloaded on - 09/06/2013 13:49:26 ::: 13 inference that the appointment is illegal. As held by the Full Bench of our Court in the case of St.Ullai High School & anr. v/s Devendra Prasad Jagannath Singh, reported in 2007 (1) Mh.L.J. 597, 597 the rejection of approval for an appointment would not necessarily mean that the management can terminate the services of an employee automatically; nor would it mean that the services would automatically come to an end after the approval was refused. Thus, assuming no approval was granted, the petitioner was entitled to continue on the post at the risk of the management. Respondent No.1 ought to have filed the appeal within a reasonable time and, in my opinion, a period of five years is certainly not a reasonable time in the facts of the present case.

14. On merits, there can be no dispute that the advertisement which was issued for appointment of the Head of the School had not been issued in compliance with Rule 3(5)(a) of the M.E.P.S. Rules. Prior permission of the Education Officer/Deputy Director for advertising the post is mandatory. Admittedly, the management has not obtained this permission as required under Rule 3(5)(a). The Division Bench of this Court has observed in the judgment of Tara Ramesh Tupkar v/s Pramod Shikshan Sanstha & ors. (supra), that an appointment which is in violation of sub-rule 5(a) of ::: Downloaded on - 09/06/2013 13:49:26 ::: 14 Rule 3, must be quashed. However, these observations were made in the matter where the appeal filed by the employee was maintainable. Post facto approval has undoubtedly been given to the appointment of the petitioner. His appointment has been approved on 21.2.1995 with effect from 1.6.1990. However, it must be borne in mind that the grant-in-aid was extended to the school by the order of the Education Department dated 4.6.1990. Thus, when the advertisement was issued on 16.6.1990, the School was not getting any grant-in-aid and, therefore, in my opinion, no approval was necessary from ig the Education Department prior to issuance of the advertisement.

15. In my view, the Tribunal has erred in granting relief to the respondent No.1 when the appeal itself was not maintainable and had been filed after an inordinate delay of five years. The petition must succeed.

16. The impugned order is set aside. Writ petition allowed.

17. Rule made absolute. No order as to costs.

18. Respondent No.1 may approach any other forum for redressal of her grievance. If any litigation is filed ::: Downloaded on - 09/06/2013 13:49:26 ::: 15 by respondent No.1 in respect of the subject matter of this petition, the appropriate forum will take into account the pendency of this petition in this Court while deciding whether the application or any other litigation filed by the respondent No.1 has been filed within the period of limitation.

19. Civil Application No.1768 of 2008 also stands disposed of accordingly.

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